Write Confidentiality or Non-disclosure Agreement

When you carry a project, you tend to be very vague and not want to divulge your project. But how to keep everything confidential between the different partners? Michelle Jean-Baptiste, legal expert, advises us to draft a Confidentiality / non-disclosure agreement.

Some Confidentiality / non-disclosure agreements must be more developed and more specific especially when the partners come from “different worlds”. The best example is public-private partnerships with actors such as universities, laboratories and companies.

A Confidentiality / non-disclosure agreement should cover all information provided or made available to the other party requiring Confidentiality. Excluded is information that is demonstrably known to the contracting party or the public prior to notification. In addition, information that is disclosed without breach of the Confidentiality / non-disclosure agreement or that is to be disclosed by law or regulatory requirement will also be excluded. Also, information that is lawfully disclosed to the other party by a third party is in most cases not to be protected by Confidentiality / non-disclosure agreements. I have break down a standard non-disclosure agreement into 12 main points. And tried to cover each point in best viable way. So, let’s start:

  1. Preamble
  2. Definitions
  3. Object
  4. Confidentiality commitments
  5. Limits to Confidentiality commitments
  6. Property
  7. Responsibility
  8. restitution
  9. Duration – Entry into force
  10. New partner
  11. General provisions
  12. [OPTION]: Appendices

 

Preamble

You can start it in 2 ways. I have listed them as Option A and Option B. Each option has its conditions.

Option A

  1. The Partners are studying the opportunity to set up a collaborative research and development project called [Name to specify], hereinafter the Project, which would be labeled within the framework of the competitiveness cluster [Name to be specified].
  2. On this occasion, the Partners are brought to exchange know-how, information and confidential documents, which they wish to, guarantee Confidentiality.
  3. It will be the same during the execution of the Project, if it is labeled.
  4. In order to ensure the Confidentiality of their confidential information and documents, the Partners have agreed as follows.

 

Option B

 

  1. Partners participate in a collaborative research and development project called [Name to be specified], hereinafter the Project, labeled within the framework of the competitiveness cluster [Name to be specified].
  2. In the context of the Project [Name to be specified], the Partners are brought to exchange know-how, information and confidential documents, which they wish to guarantee Confidentiality.
  3. To this end, the Partners have agreed as follows.

 

Definitions

In this section, you need to define the terms to refer different subjects.

For the purposes of this contract, the following terms will have the following meaning:

“Partners”: all participants in the Project, signatories of this Confidentiality / non-disclosure agreement;

“Titular Partner”: Partner who owns one (or more) Confidential Information (s) that he / she transmits to the other Partners;

“Recipient Partner (s)”: Partner (s) who receive the Confidential Information (s) from the Associate Partner; “Project”:

 

Example A: collaborative research and development project called [Name to be specified], whose implementation and labeling are envisaged by the Partners in the framework of the competitiveness cluster [Name to be specified];

Example B: collaborative research and development project named [Name to be specified], labeled within the framework of the [Name to specify] competitiveness cluster, on [Domain to be specified];

 

“Confidential information”: information and data of any kind, including technical, scientific, economic, financial, commercial, accounting, any plan, study, prototype, equipment, audit, experimental data and tests, drawings, graphic representations, specifications, knowledge -experience, software, and programs, in any form, medium or medium, including, without limitation, oral communications, written or attached to any medium, that Partners are required to share part of the Project, directly or indirectly related to the Project; And or designated as confidential by the Proprietor Partner, by a stamp or legend if the said Information is in writing, and by a special mention upon its disclosure, confirmed in writing within a short time, not to exceed 15 days, if the said Information is oral.

Object

The purpose of this contract is to define the obligation of Confidentiality that is required of Partners in the context of their exchanges for the implementation and / or execution of the Project.

 

Confidentiality Commitments

This section covers the terms and commitments of Confidentiality, that partners will agree by signing this agreement. This section can be draft as following:

a) The Partners undertake to observe and observe the strictest Confidentiality with regard to Confidential Information, and to take all necessary measures to preserve Confidentiality, in particular with regard to their permanent or temporary staff. The Partners agree that this clause is of a substantial nature to them.

 

b) To this end, the Partners undertake to:

  • Confidential information is protected and kept confidential;
  • That the Confidential Information received is treated with the same degree of care and protection as that accorded to their own confidential information;
  • Not to use Confidential Information for any purpose other than setting up and / or carrying out the Project;
  • Disclose Confidential Information only to members of their staff involved in the implementation and / or execution of the Project;
  • Disclose the Confidential Information to third parties involved in the implementation and / or execution of the Project only after having obtained the written, explicit and prior agreement of the Partner;
  • Take all necessary steps to ensure that all members of their staff and all third parties involved in the implementation and / or execution of the Project, who will have the communication of Confidential Information, undertake, [Option: by separate act, before any communication], to treat the Information with the same degree of Confidentiality as that resulting from this contract;
  • To report the confidential nature of the Confidential Information to the members of their personnel and to all third parties involved in the implementation and / or execution of the Project, as soon as this Information is communicated;
  • To recall the confidential nature of the Confidential Information prior to any meeting during which Confidential Information will be communicated;
  • Maintain the forms of copyright, Confidentiality, prohibition of copying, or any other mention of ownership or Confidentiality, appearing on the various elements communicated, whether originals or copies.

 

c) In addition, the Partners forbid:

  • Any disclosure whatsoever to any third party whatsoever of the Confidential Information, except with the express written consent of the Proprietor; [Option: the situation is different for the third parties listed in the appendix, who may have disclosure of Confidential Information, without the prior and express authorization of the Associate Partner];
  • Use and / or exploit in whole or in part the Confidential Information for purposes other than the establishment and / or execution of the Project;
  • To file in their name only a patent application on Confidential Information of which they are not holders, and more generally any industrial property title;
  • To make copies, reproductions or duplications of all or part of the Confidential Information, except with the express written consent of the Proprietor;
  • To rely, as a result of the disclosure of Confidential Information, of any assignment, license or any right of prior possession, as defined by the Code of Intellectual Property, on Confidential Information.

 

d) The Partners make sure of the respect of the present commitments by any person, physical or moral, to which they would have communicated the Confidential Information.

e) The Partners recognize that all Confidential Information, without any exception, is of a secret nature within the meaning of Article 226-13 of the Penal Code which punishes with one (1) year imprisonment and 15,000-euro fine disclosure of secret information.

 

Limits to Confidentiality Undertakings

This section covers the terms by which partners are not bound by any obligation of Confidentiality with regard to the information:

  • specifically mentioned as non-confidential by the incumbent Partner;
  • who, prior to disclosure by the Full Partner, were already owned or known by the Recipient Partner, provided that he or she provides evidence thereof;
  • which belong to the public domain before their date of communication by the titular Partner or which would become public afterwards, without fault on the part of the recipient Partner, and without there being a violation of an obligation of secrecy;
  • lawfully received from a third party without breach of an obligation of secrecy;
  • Developed by or for the Recipient Partner, regardless of any access to Confidential Information.

 

Ownership

All Confidential Information and the media provided and delivered by each Proprietary Partner are and will remain the exclusive property of that Partner

Liability

 

The Partners acknowledge that any breach of their Confidentiality obligations by them will cause serious harm to the Proprietor, and that the latter may ask them for compensation.

 

Restitution

 

  1. In the event of a Partner’s waiver of the Project, the latter undertakes to provide spontaneously, without delay, all the Confidential Information that has been transmitted to it.
  2. In case of non-labeling of the Project or abandonment thereof by all Partners, Confidential Information will, likewise, spontaneously destroyed or returned without delay, without it being preserved copy, whether on support paper or dematerialized media.
  3. Recipient partners undertake to justify such refunds or destruction to any Partner who requests it.

 

Duration – Entry into force

In this section, duration of non-disclosure agreement and validity of terms after expiration will be defined. This section can be formatted as following:

a) This contract will come into effect on the day of signature by all Partners.

b) Option: This Confidentiality / non-disclosure agreement is binding on the Partners for the duration of the Project and as long as the Confidential Information has not been publicly disclosed.

OR

Option: This Confidentiality / non-disclosure agreement is binding on the Partners for the duration of the Project and, after the end of the Project, for the duration set out in the Annex.

c) This is the case in the case of non-labeling of the Project, or a waiver of the Project by one of the Partners, or abandonment of the Project by all Partners, for whatever reason.

 

New Partner

The acceptance of any new Partner in the Project is subject to the signing of a Confidentiality / non-disclosure agreement or the ratification of this Confidentiality / non-disclosure agreement.

 

General Provisions

 

  1. This contract expresses all the obligations of the Partners.
  2. In case of difficulties of interpretation between any of the titles appearing at the head of the clauses, and any of the clauses, the titles will be declared non-existent.
  3. If one or more stipulations of this Confidentiality contract are held invalid or declared as such under a law, a regulation or following a final decision of a competent court, the other stipulations will retain all their force and their range.
  4. Each Partner is independent and acts in its own name and under its sole responsibility. Each Partner is therefore prohibited from making a commitment in the name and on behalf of another and remains fully responsible for its personnel, services, products and services.
  5. This Confidentiality / non-disclosure agreement has been entered into by each Partner in consideration of the person of the other Partners and may not under any circumstances be sold, in whole or in part, for value or free of charge, by one of the Partners. Without the prior written consent of others.
  6. The Partners have agreed to perform their obligations with perfect good faith.
  7. The Partners agree that the fact that one of them tolerates a situation does not have the effect of granting the other rights acquired. Such tolerance shall not be construed as a waiver of the rights in question.
  8. The present contract is regulated by the law. This is so for both the substantive rules and the rules of form.

 

[OPTION]: Appendices

 

Annex 1: List of Confidential Information

Annex 2: List of third parties who may have access to Confidential Information

Annex 3: Duration of the Project]

 

Conclusion

 

Confidentiality / non-disclosure agreements can also be concluded in advance of projects to protect the contract negotiations and the project definition externally and to open them up for the internal exchange of information. In this case, they are usually concluded together with a Letter of Intent. Contents of Confidentiality declarations can be processes of information and document management, rules on proof obligations, names of particularly sensitive information, designation of free information, penalties and other legal agreements.

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